Citation Nr: 0710581
Decision Date: 04/11/07 Archive Date: 04/25/07
DOCKET NO. 05-29 677 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUE
Entitlement to an initial evaluation in excess of 10 percent
for residuals of an L3-4 hemilaminectomy and diskectomy.
REPRESENTATION
Appellant represented by: Oklahoma Department of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
C. Moore, Associate Counsel
INTRODUCTION
The veteran had active service from January 1943 to June
1945.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an April 2005 rating decision of the Muskogee,
Oklahoma Regional Office (RO) of the Department of Veterans
Affairs (VA) that granted service connection for low back
disability and assigned a 10 percent evaluation, effective
March 24, 2004.
FINDING OF FACT
The veteran's residuals of an L3-4 hemilaminectomy and
diskectomy have been manifested by complaints of pain,
productive of limitation of motion, with no objective
neurologic deficit.
CONCLUSION OF LAW
The criteria for an initial evaluation in excess of 10
percent for residuals of an L3-4 hemilaminectomy and
diskectomy at L1 with deformity have not been met.
38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159,
3.951, 4.14, 4.40, 4.45, 4.59, 4.71a; Diagnostic Code 5237,
5243 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
VCAA
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2006); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA
notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see
also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
Further regarding the first notice element indicated above,
on March 3, 2006, the United States Court of Appeals for
Veterans Claims (Court) issued its decision in the
consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006). The Court in Dingess/Hartman holds that the
VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) apply to all five elements of a "service
connection" claim. As previously defined by the courts,
those five elements include: (1) veteran status; (2)
existence of a disability; (3) a connection between the
veteran's service and the disability; (4) degree of
disability; and (5) effective date of the disability. Upon
receipt of an application for "service connection,"
therefore, the Department of Veterans Affairs (VA) is
required to review the information and the evidence presented
with the claim and to provide the claimant with notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. This includes notice that
a disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Because the Court's decision is premised on the five elements
of a service connection claim, it is the consensus opinion
within the VA that the analysis employed can be analogously
applied to any matter that involves any one of the five
elements of a "service connection" claim, to include an
increased rating claim.
In the present case, because the April 2005 rating decision
granted the veteran's claim of entitlement to service
connection for a low back disability, such claim is now
substantiated. As such, his filing of a notice of
disagreement as to the April 2005 determination does not
trigger additional notice obligations under 38 U.S.C.A.
§ 5103(a). Rather, the veteran's appeal as to the initial
rating assignment here triggers VA's statutory duties under
38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties
under 38 C.F.R. § 3.103. As a consequence, VA is only
required to advise the veteran of what is necessary to obtain
the maximum benefit allowed by the evidence and the law.
This has been accomplished here because the August 2005
Statement of the Case, under the heading "Pertinent Laws;
Regulations; Rating Schedule Provisions," set forth the
relevant diagnostic codes (DC) for spinal disabilities, and
included a description of the rating formulas under those
diagnostic codes. Thus, the appellant has been informed of
what was needed to achieve higher schedular ratings.
Therefore, the Board finds that the appellant has been
informed of what was necessary to achieve higher evaluations
for the service-connected disability on appeal.
With regard to the duty to assist, the claims file contains a
report of VA examination, private treatment records, and
statements from private examiners. Additionally, the claims
file contains the veteran's statements in support of his
claim. The Board has carefully reviewed such statements and
concludes that he has not identified further evidence not
already of record. The Board has also perused the medical
records for references to additional treatment reports not of
record, but has found nothing to suggest that there is any
outstanding evidence with respect to the veteran's claim.
The Board notes that the veteran has contended that his
February 2005 VA fee-basis examination was not sufficient.
However, the Board, after a review of the veteran's claims
file, finds that the objective, clinical findings contained
in the record, are sufficient to evaluate the veteran's
disability. Accordingly, the Board finds that a new
examination is not "necessary." See generally Wells v.
Principi, 326 F.3d 1381 (Fed. Cir. 2003).
Thus, based on the foregoing, the Board finds that all
relevant facts have been properly and sufficiently developed
in this appeal and no further development is required to
comply with the duty to assist the veteran in developing the
facts pertinent to his claim. Essentially, all available
evidence that could substantiate the claim has been obtained.
Legal Criteria
The Board has reviewed all of the evidence in the veteran's
claims file, with an emphasis on the medical evidence for the
rating period on appeal. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence of record. Indeed, the Federal Circuit
has held that the Board must review the entire record, but
does not have to discuss each piece of evidence. Gonzales
v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore,
the Board will summarize the relevant evidence where
appropriate, and the Board's analysis below will focus
specifically on what the evidence shows, or fails to show, as
to the claim.
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. Part 4 (2006).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability more closely approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2006).
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding the
degree of disability, such doubt will be resolved in favor of
the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§
3.102, 4.3 (2006).
In determining the level of impairment, the disability must
be considered in the context of the whole recorded history.
38 C.F.R. § 4.2, 4.41 (2006). An evaluation of the level of
disability present also includes consideration of the
functional impairment of the appellant's ability to engage in
ordinary activities, including employment. 38 C.F.R. § 4.10
(2006).
In a claim for a greater original rating after an initial
award of service connection, all of the evidence submitted in
support of the veteran's claim is to be considered.
In initial rating cases, separate ratings can be assigned for
separate periods of time based on the facts found, a practice
known as "staged" ratings. See Fenderson v. West, 12 Vet.
App. 119 (1999); 38 C.F.R. § 4.2 (2006).
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations that are potentially
applicable based upon the assertions and issues raised in the
record and to explain the reasons and bases for its
conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
Ratings shall be based as far as practicable, upon the
average impairments of earning capacity with the additional
proviso that the Secretary shall from time to time readjust
this schedule of ratings in accordance with experience. To
accord justice, therefore, to the exceptional case where the
schedular evaluations are found to be inadequate, an extra-
schedular evaluation commensurate with the average earning
capacity impairment due exclusively to the service-connected
disability or disabilities may be assigned where the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1) (2006).
When all of the evidence is assembled, VA is then responsible
for determining whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether a fair preponderance of the evidence is
against the claim, in which case the claim is denied.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When, after consideration of all of the evidence
and material of record in an appropriate case before VA,
there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107;
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Legal Analysis
The veteran asserts that an evaluation in excess of 10
percent is warranted for his service-connected low back
disability. At the outset, the Board observes that service
connection for the disability at issue has been established
effective from March 24, 2004
The RO has evaluated the veteran's service-connected low back
disability under 38 C.F.R. § 4.71, Diagnostic Code 5237
(pertaining to lumbosacral or cervical strain) (2006).
Under the General Rating Formula for spinal disabilities, a
20 percent rating is assigned for forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or muscle
spasm or guarding severe enough to result in an abnormal gait
or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis. A 40 percent rating is
assigned for forward flexion of the thoracolumbar spine 30
degrees or less; or favorable ankylosis of the entire
thoracolumbar spine. A 50 percent rating is assigned for
unfavorable ankylosis of the entire thoracolumbar spine. A
100 percent rating is assigned for unfavorable ankylosis of
the entire spine. 38 C.F.R. § 4.71, Diagnostic Code 5237 for
lumbosacral strain; Diagnostic Code 5238 for spinal stenosis;
and Diagnostic Code 5243 for intervertebral disc syndrome
(2006).
However, in this case, the competent clinical evidence of
record is against an evaluation in excess of 10 percent for
the orthopedic manifestations of the disability at issue
based on the general rating formula for disease or injury of
the spine. In this regard, on VA fee-basis examination in
February 2005, the examiner reported that examination of the
veteran's posture was within normal limits, but that he had a
slight limp that caused an abnormal gait. The examiner
further reported that an examination of the veteran's
thoracolumbar spine revealed no complaints of radiating pain
on movement. He also indicated that muscle spasm was absent,
and that there was no tenderness, and no ankylosis of the
spine. He further reported that range of motion testing of
the thoracolumbar spine was as follows: flexion--90 degrees,
with pain at 90 degrees, extension - 30 degrees with pain at
30 degrees, bilateral lateral flexion-30 degrees,
respectively, bilateral rotation--30 degrees. The examiner
reported that the range of motion of the veteran's spine was
additionally limited by pain and fatigue after repetitive
use, but was not additionally limited by weakness, lack of
endurance and incoordination following repetitive use.
Based on these clinical findings, the Board finds that the
veteran's combined range of motion of the thoracolumbar spine
of 240 degrees and forward flexion of 30 degrees, exceeds the
criteria for the assignment of a 20 percent evaluation of
forward flexion of the thoracolumbar spine greater than 30
degrees but not greater than 60 degrees, or the combined
range of motion of the thoracolumbar spine not greater than
120 degrees. The Board notes that a 20 percent evaluation is
also available if there is muscle spasm or guarding severe
enough to result in an abnormal gait or abnormal spinal
contour such as scoliosis, reversed lordosis, or abnormal
kyphosis. However, although the examiner reported that the
veteran had an abnormal gait because he had a slight limp,
there is no evidence that such abnormal gait resulted from
severe muscle spasm or guarding. Indeed, the February 2005
examiner reported that the veteran did not experience any
muscle spasm and he did not indicate that the veteran
experienced any guarding. As such, the criteria for a 20
percent evaluation under the General Rating Formula for
spinal disabilities have not been satisfied.
However, as explained before, the musculoskeletal nature of
the disability requires consideration of additional
functional limitation due to factors such as pain, weakness,
incoordination and fatigability. See 38 C.F.R. §§ 4.40 and
4.45 and DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).
Here, the February 2005 examination reveals that the veteran
experienced functional loss due to pain and fatigue.
However, even with consideration under the criteria set forth
in 38 C.F.R. §§ 4.40 and 4.45 and DeLuca v Brown, 8 Vet. App.
202 (1995), the Board finds that there has been no
demonstration, by competent clinical evidence, of additional
functional impairment comparable to forward flexion of the
thoracolumbar spine greater than 30 degrees but not greater
than 60 degrees; or the combined range of motion of the
thoracolumbar spine not greater than 120 degrees. Therefore,
based on the analysis of those criteria set forth above, the
veteran remains entitled to no more than a 10 percent
evaluation for his service-connected residuals of an L3-4
hemilaminectomy and diskectomy.
In addition to evaluating intervertebral disc syndrome
(Diagnostic Code 5243) under the general rating formula for
diseases and injuries of the spine, outlined above, it may
also be rated on incapacitating episodes, depending on
whichever method results in the higher evaluation when all
service-connected disabilities are combined under 38 C.F.R.
§ 4.25. However, there is no objective evidence of record
that the veteran experiences incapacitating episodes.
Indeed, on examination in February 2005, the veteran reported
that his back condition did not cause incapacitation.
Moreover, the February 2005 examiner reported that the
veteran did not display any signs of intervertebral disc
syndrome with chronic and permanent nerve root involvement.
As such, a higher evaluation is not warranted under
Diagnostic Code 5243 when evaluated based on incapacitating
episodes.
As instructed by Note (1) to the General Rating Formula for
Disabilities of the Spine, associated objective neurological
abnormalities should be rated (or continue to be rated)
separately under an appropriate Diagnostic Code. However, in
this case, the record does not demonstrate that the veteran
has been previously assigned a separate evaluation for any
neurologic deficit. Additionally, the Board finds that the
record does not currently demonstrate any objective
neurological abnormalities. In this regard, the Board
acknowledges that in an April 2005 letter, Dr. K. F. S.
stated that the veteran experienced increasing lumbar pain
along with radicular symptoms in the hips and legs. However,
the examiner did not provide any objective clinical findings
to substantiate his statement. However, on the other hand,
on examination in February 2005, the examiner reported that
the veteran had bilateral negative straight leg raising and
there were no signs of chronic and permanent nerve root
involvement. Further, on neurological examination, the
examiner reported that the veteran's motor and sensory
function were within normal limits and his bilateral lower
extremities revealed knee and ankle jerks that were 2+.
Therefore, because the objective clinical evidence of record
does not reflect that the veteran has objective compensable
neurologic impairment or abnormalities, the Board concludes
that the veteran is not entitled to a separate evaluation
based on neurological manifestations of his service-connected
low back disability. See 38 C.F.R. § 4.124a, Diagnostic Code
8520 (2006).
In conclusion, for all of the foregoing reasons, the Board
finds that the 10 percent evaluation in effect for the
veteran's residuals of an L3-4 hemilaminectomy and diskectomy
is appropriate and a higher evaluation is not warranted. As
the preponderance of the evidence is against the claim, the
benefit of the doubt rule is not applicable. See 38 U.S.C.A.
§ 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56
(1990).
Extraschedular Consideration
The Board is required to address the issue of entitlement to
an extraschedular rating under 38 C.F.R. § 3.321 only in
cases where the issue is expressly raised by the claimant or
the record before the Board contains evidence of
"exceptional or unusual" circumstances indicating that the
rating schedule may be inadequate to compensate for the
average impairment of earning capacity due to the disability.
See VA O.G.C. Prec. Op. 6-96 (August 16, 1996). In this
case, the record before the Board does not contain evidence
of "exceptional or unusual" circumstances that would
preclude the use of the regular rating schedule.
ORDER
Entitlement to an initial evaluation in excess of 10 percent
for residuals of an L3-4 hemilaminectomy and diskectomy is
denied.
____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs